## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1794WM

_____________ United States of America, * * Appellee, *

* Appeal from the United States v. * District Court for the Western * District of Missouri. David McCoy, also known as Thomas * M. Miller, * [UNPUBLISHED] * Appellant. *

_____________ Submitted: September 22, 1998

Filed: October 7, 1998

_____________ Before McMILLIAN, HEANEY, and FAGG, Circuit Judges.

_____________ PER CURIAM.
Af ter David McCoy pleaded guilty to bank fraud, the district court sentence d him to imprisonment for thirty-three months. McCoy appeals his se ntence asserting the dist rict court abused its discretion in departing upward from the otherwise applicable sen tence based on “reliable information indicat[ing] that the [defendant’s] crimina l history category does not adequately reflect the seriousness of the defendant’s pas t cri minal conduct or the likelihood that the defendant will commit other crimes.” U.S. Sentencing Guidelines Manual § 4A1.3 (1997). In departing upward, the district court could consider some of McCoy’s earlier convictions that were excluded from his-2-

criminal history because of their age. See United States v. Andrews , 948 F.2d 448, 449 (8th Cir. 1991). Likewise, consideration of some of McCoy’s earlier arrests and juvenile adjudications was permissible. See Un ited States v. Joshua , 40 F.3d 948, 953 (8th Cir. 1994). We conclude the dis trict court did not abuse its discretion in deciding McCoy’s criminal history score significantly underrepresents the seriou sness of his past criminal conduct. McCoycomplains that the district court failed to proceed along the Guidelines criminal history ax is in deciding the extent of the departure, but the district cour t’s findings sufficiently explained and supported the departure in this particula r case. See United States v. Collins , 104 F.3d 143, 145 (8th Cir. 1997). McCoy next asserts the district court committed clea r error in enhancing his sentence for his role as an organizer or mana ger in his offense. See Guidelines § 3B1.1. The definition of an or ganizer or leader is broad, and a defendant may be an organizer or leader withou t having any direct cont

rol over others. See United States v. Grady , 972 F.2d 889, 889 (8th Cir. 1992 ) (per curiam). Having thoroughly reviewed the issue, we conclude the district court did not commit clear error in finding McCoy was an organizer or manager under § 3B1.1. We thus affirm McCoy’s sentence. HEANEY, Circuit Judge, concurring in part and dissenting in part.
While I con cur in the result reached by the majority with respect to McCoy’ s criminal history, because the record does not support the district court’s determination that Mc Coy was an organizer, leader, manager, or supervisor under the standard se t forth in the U.S. Sentencing Guidelines Manual § 3B1.1(c) (1997), I respectfull y dissent.
A district court’s determination of a defendant’s role in t he offense is reviewable for clear error. See United States v. Guerra , 113 F.3d 809 , 820 (8th Cir. 1997); United States v. Jo hnson , 47 F.3d 272, 277 (8th Cir. 1995). In determining whether t o enhance a defendant’s sentence under § 3B1.1 of the guidelines, the sentencing court should con sider such factors as "the exercise of decision making authority, the nature-3-

o f participation in the commission of the offense, the recruitment of accomplices, the cl aimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing t

he offense, the nature and scope of the illegal activity, and the degree of control and authority exerc ised over others." Guidelines § 3B1.1, comment. (n. 4) (1997).
On Au gust 21, 1997, the parties filed a plea bargain agreement in which th e gov ernment

agreed not to seek a managerial adjustment under §§ 3B1.1 or 3B1.2

. Similarly, on December 2, 1997, the probation office prepared McCoy’s pre-sentence investigation report and did not recommend a managerial adjustment. McCoy’ s sentencing hearing took place on March 5, 1998. The district court i mposed an upward adjustment for both McCoy’s criminal history and hi s managerial role, even though the district court had previously only provided notice that it was considering an upwar d departure based on criminal history. While I have no objection to the district court’s imposition of an adjustment for McCoy’s criminal history, I find no support in the record to sustain the manageria l adjustment. Because McCoy pled guilty, no trial established the facts necessary to find McCoy’s managerial role in the offense beyond a reasonable doubt. Instead, th e district court adopted the factual findings of McCoy’s p resentence report and heard the brief testimony of Jane Thomason, the pro bation officer who completed McCoy’s presentence report. Thomason’s testimony was based on conversations with McCoy and the other defendants who participated in the offense. She testified that: Both Mr. Couples and Mr. Collins told me that Mr. McCoy is t he one that explained to them how they could make money from some blank checks they had found. He told them how to open accounts and to use check s from o ther new accounts to deposit into the original account and how to avoid detection.-4-

(Sentencing Tr. at 5 .) She also testified that McCoy told Collins that they could open an account in Collins’ name and use it to withdraw funds but that the account would be " leveled out" and Collins would not be discovered as being responsible fo r withdrawing the funds. See id.
Even if McCoy was a full participant in this scheme, the record--here the pre

sentence report and brief testimony of Thomason- -does not support the conclusion that McCoy was an organizer, leader, manager, or supervisor. First, nothing suggests that McCo y had decision-making authority in the scheme. Second, aside from the initia l discu ssion regarding the method by which the checks could be used, the nature o f McCoy’s participation in the commission of the offense w as unremarkable. Moreover, Collins procure d the checks, kept them in his bedroom closet, and performed the first transact ionwith them. Third, nothing in the record suggests that McCoy recruite d accomplices. In fact, the majority of those involved in the scheme appear to have been friends of, if not recruited by, Collins. Fourth, McCoy did not claim a right to a larger share of the fruits of the c rime. Each transaction appears to have been independent of the others with each individual trying to defraud a particular institution. Fifth, McCoy did not participate any more than the others involv ed in the scheme. While the scheme took place from November 1995 through January 1996, McCoy’s p articipation appears to have b een limited to two transactions on December 11th and one attempte d transaction on December 12th. Sixth, the nature and scope of the scheme was minor, invo lving several transactions by as many as seven individuals. Finally, there is n o in dication that McCoy exercised any control or authority over the others involved i n the scheme.
The only facts supporting McCoy’s managerial role in the offense are the two transactions on December 11th ; one attempted transaction on December 12th; and the fact that M cCoy described how Collins’ checks could be used to obtain mone y fraudulently. In my view, this is insufficient to support a finding that McCoy was an organizer, leader, manager, or supervisor under § 3B1.1(c). Consequently, I would-5-

reverse and hold that the district c ourt committed clear error when it imposed the twolevel enhancement for McCoy’s managerial role in the offense.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.